11-05-2024
Last year, three Fifth Circuit judges held that Elon Musk illegally threatened his workers' stock options if they participated in union organizing on Twitter. That court decision affirmed an NLRB ruling that also concluded Tesla fired an employee because he participated in union organizing in 2018. The NLRB had ordered Musk to delete the threatening post and Tesla to reinstate the employee. The employee posted screenshots of co-workers who opposed the union on a private Facebook page. When Tesla questioned the employee about the photos, he said he could not remember where the pictures came from. This employee later admitted to lying, and Tesla fired him. The NLRB found Tesla fired the employee because he participated in the union drive.
Musk appealed the decision to the full Fifth Circuit panel. In a 9-8 ruling, the Fifth Circuit overturned the earlier decision, concluding that the NLRB "exceeded its authority" when it ordered Musk to delete his tweet. It stated, "We hold that Musk's tweets are constitutionally protected speech." The NLRB must now review its prior decision in light of the circuit court's direction to consider evidence that the actual decision maker in the employee's firing did not have anti-union animus. The appellate court vacated the NLRB order that Tesla reinstate the employee or give him back pay.
The Fifth Circuit did not address whether Musk's tweet threatening workers violated the National Labor Relations Act. The dissenting judges wrote a 31-page dissent, calling the majority opinion "logically incoherent" and "light on law and facts." The dissent compared Musk's tweet to a publicly available press release, noting that Tesla's history of labor violations would cause employees to perceive it as a threat.